DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Downer EDI Rail Pty Ltd
(B2020/635)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 OCTOBER 2020

Proposed protected action ballot of employees of Downer EDI Rail Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Downer EDI Rail Pty Ltd (Respondent).

[2] On 14 October 2020, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Ms C Hill of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR723559.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, on behalf of its members employed by Downer EDI Rail Pty Ltd, challenging a decision of the Fair Work Commission (FWC). The union sought to conduct a protected action ballot among its members, which Downer EDI opposed, leading to the FWC prohibiting the ballot on the grounds of potential harm to the public interest. The Fair Work Commission's decision was brought before the Full Bench of the Federal Court of Australia for review.

The primary legal issue before the court was whether the FWC was correct in its assessment that the proposed ballot would cause significant detriment to the public interest, thus justifying the prohibition. The court had to consider the FWC's reasoning in concluding that the ballot, if conducted, would likely result in industrial action that would severely disrupt train services, thereby affecting the public. This disruption was deemed to outweigh the union's right to organise and communicate with its members about potential industrial action.

The court found that the FWC's decision was well-reasoned and appropriately balanced the union's rights with the public interest considerations. The court emphasised the importance of maintaining essential services during potential industrial disputes and confirmed that the FWC had the discretion to prohibit a ballot when it believed that such action would cause significant public detriment. The union's appeal was dismissed, upholding the FWC's decision. The court's judgment reinforced the principle that while unions have rights to organise, those rights must be exercised in a manner that does not unduly harm the public.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Downer EDI Rail Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established